USA v. Gallardo-Monares

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSE LUIS GALLARDO-MONARES,
Defendant.
Case No.: 19-cr-3836-MDD-WQH
ORDER
HAYES Judge:
The matter before the Court is the Notice of Appeal to District Court filed by
Defendant Jose Luis Gallardo-Monares. (ECF No. 39.)
BACKGROUND
On September 26, 2019, Plaintiff United States of America filed a single-count
Information charging Defendant with a misdemeanor charge of attempted improper entry
of an alien, in violation of 8 U.S.C. § 1325(a)(1). (ECF No. 1.)
On September 27, 2019, Defendant was arraigned on the Information, pled not
guilty, and was released on bond. (ECF No. 3.)
On December 20, 2019, Magistrate Judge Mitchell D. Dembin presided over a one-
day bench trial in which the United States called two witnesses: Border Patrol Agent and
K-9 handler Luis Rodriguez, the apprehending agent; and Border Patrol Agent Derrick
McCain, a records custodian. (Trial Trans. at 6–31, 33–36, ECF No. 58-2.)
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Agent Rodriguez testified that he had been in the Border Patrol for 18 years, assigned
to the Campo station for his entire tenure and worked as a K-9 handler since 2010. Id. at 6.
Agent Rodriguez testified that, on June 26, 2019, at 6:57 a.m., he responded to an alert
from a seismic intrusion device that detected movement in a remote area less than a mile
from the border. Id. at 11–12. Agent Rodriguez testified that he knew this area and had
made arrests there before. Id. at 12. He testified that when he arrived at the scene, he
discovered multiple sets of footprints heading north, further into the United States. Id.
Agent Rodriguez testified that the footprints did not have a tread pattern like the bottom of
a shoe normally would leave; instead, “[i]t’s just the outline of a shoe.” Id. at 13. In Agent
Rodriguez’s experience, this indicated the individuals were wearing “booties,” which he
described as a cloth used to conceal the shoeprints of an individual, to cover the pattern left
by their shoes. Id. at 13. In Agent Rodriguez’s experience, the significance of the booties
was “to prevent, from the individuals that come into the country illegally, to leave any
definite marking of the shoe that they’re wearing.” Id. at 22.
Agent Rodriguez testified that he followed the footprints with the assistance of his
K-9 partner. Id. at 14. After tracking the footprints for approximately 30 minutes to a
location approximately two miles north of the border and approximately 16 miles from the
nearest port of entry, Agent Rodriguez encountered three individuals hiding in brush,
including two men lying face down in an apparent attempt to conceal themselves. Id. at 14,
21. One of the individuals encountered by Agent Rodriguez was Defendant. Id. at 14.
Agent Rodriguez testified that he noticed Defendant and the other two individuals were
wearing booties over their shoes. Id. at 19. Agent Rodriguez also observed that Defendant
and his two co-travelers did not have any hiking, camping, or hunting equipment, and there
were no businesses or campgrounds in the area, and Agent Rodriguez did not observe any
vehicles on the nearest road, which was a half-mile away. Id. at 19–21.
Agent Rodriguez testified that he identified himself as a United States Border Patrol
Agent and conducted an immigration inspection on Defendant and the other two suspects
in the Spanish language. Id. at 16; see also id. at 8 (Agent Rodriguez testified he is a fluent
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Spanish speaker). Agent Rodriguez testified that he asked Defendant what country he was
a citizen of, and whether Defendant had any immigration documents to show that he was
legally present in the United States. Id. at 16. Defendant answered that he was a citizen of
Mexico and had no such immigration documents. Id. Defendant’s two co-travelers also
admitted to being citizens of other countries and not having legal documents to be in the
United States. Id. Agent Rodriguez testified that he then arrested Defendant and his co-
travelers. Id. at 17.
The Government next called Agent McCain. Agent McCain testified that, as part of
his duties as a liaison to the United States Attorney’s Office, he regularly accesses federal
immigration 	databases, 	performs 	records 	checks, 	and 	maintains 	A-files 	related 	to
undocumented aliens. Id. at 33–34. Agent McCain testified that when he searched these
databases for Defendant, there was no record of any application for lawful admission to the
United States or for any other immigration benefits. Id. at 36.
Defendant did not present any evidence at trial. Id. at 37.
Judge Dembin denied Defendant’s oral motion for judgment of acquittal, id. at 37–
38, and then found Defendant guilty. Id. at 43. Judge Dembin stated that he considered
Defendant’s admissions in the field that he was an alien without any legal documentation
supporting his presence in the United States. 	Id. at 42. Judge Dembin stated that
corroborating evidence included the evidence that Defendant “was moving north from the
border … with no road,” and “[a]t the time that the agent encountered Mr. Gallardo, there
appeared to be an attempt to conceal, as opposed to be out in the open, doing something.”
Id. Judge Dembin also relied on the evidence that Defendant had been wearing booties,
stating that “[f]olks … who … have not immediately crossed the border, or who …
otherwise have lawful business in the area, I can’t think of a reason why they would wear
booties.” Id. at 43. Judge Dembin stated that “[w]hen I combine … that information
together, I’m compelled to the conclusion that Mr. Gallardo did in fact commit the crime
of attempted illegal entry on the day in question.” Id. Judge Dembin deferred sentencing
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to allow Defendant to spend the end-of-year holidays with his family in the United States.
Id. at 46–49.
On January 6, 2020, Judge Dembin sentenced Defendant to time served. (ECF No.
37.)
On January 10, 2020, Defendant filed a Notice of Appeal to the District Court. (ECF
No. 39.) After a stay of the case and the issuance of orders to show cause (see ECF Nos.
50–56, 61), the parties filed their respective appeal briefs (see ECF Nos. 58, 62). The docket
reflects that Defendant did not file a reply brief despite being given an extension of time to
do so. (See ECF Nos. 63–65.)
ANALYSIS
“In all cases of conviction by a United States magistrate judge an appeal of right
shall lie from the judgment of the magistrate judge to a judge of the district court of the
district in which the offense was committed.” 18 U.S.C. § 3402. Rule 58(g)(2)(B) of the
Rules of Criminal Procedure provides that “[a] defendant may appeal a magistrate judge’s
judgment of conviction or sentence to a district judge within 14 days of its entry.” Fed. R.
Crim. P. 58(g)(2)(B). Defendant’s Notice of Appeal was timely filed.
“The scope of the appeal is the same as in an appeal to the court of appeals from a
judgment entered by a district judge.” Fed. R. Crim. P. 58(g)(2)(D). In reviewing the
conviction, the district court must “ask whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Corona-Garcia, 210
F.3d 973, 978 (9th Cir. 2000) (quotation omitted). The magistrate judge’s findings of fact
are reviewed for clear error, see, e.g., United States v. Leos-Maldonado, 302 F.3d 1061,
1063 (9th Cir. 2002), while the magistrate judge’s legal conclusions, including challenges
to the sufficiency of evidence and questions of statutory interpretation, are reviewed de
novo. See, e.g., United States v. Roach, 792 F.3d 1142, 1144 (9th Cir. 2015).
Defendant contends that “the government failed to prove any element beyond a
reasonable doubt and therefore failed to prove that Mr. Gallardo-Monares committed the
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crime of attempted illegal entry beyond a reasonable doubt.” (ECF No. 58 at 8.)
Specifically, Defendant contends that “the government failed to prove alienage beyond a
reasonable doubt”; “the government failed to prove, beyond a reasonable doubt, an entry
or attempted entry at a time and place other than a designated port of entry”; “the
government failed to prove beyond a reasonable doubt that Mr. Gallardo-Monares had the
conscious desire to enter the United States illegally”; and “the government failed to prove,
beyond a reasonable doubt, an overt act that was a substantial step towards a completed
offense.” Id. at 9, 11, 12.
The Government contends that this Court should affirm Defendant’s conviction
because “Gallardo received a fair trial with sufficient evidence of alienage, entry into the
United States, specific intent to enter free from official restraint, and his substantial steps
taken towards committing the crime.” (ECF No. 62 at 16.) Section 1325(a)(1) prohibits
“[a]ny alien” from “enter[ing] or attempt[ing] to enter the United States at any time or place
other than as designated by immigration officers.” 8 U.S.C. § 1325(a)(1). “Alienage is a
specific element of this offense, and the government must prove alienage beyond a
reasonable doubt.” United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009)
(citing United States v. Smith-Baltiher, 424 F.3d 913, 921 (9th Cir. 2005)).
“When the primary evidence of citizenship offered by the Government consists of
the 	defendant’s 	own 	admissions, 	those 	admissions 	require 	‘some 	independent
corroborating evidence in order to serve as the basis for a conviction.’” United States v.
Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997) (quoting United States v. Lopez-Alvarez,
970 F.2d 583, 589 (9th Cir. 1992)); see also United States v. Garcia-Villegas, 575 F.3d
949, 950 (9th Cir. 2009) (“Admissions, postfactum, of the elements of the crime with which
the defendant is charged must be corroborated by ‘substantial independent evidence which
would tend to establish the trustworthiness of the statement[s].’”) (quoting Opper v. United
States, 348 U.S. 84, 93 (1954)). “This is the contemporary iteration of the common law
corpus delicti rule.” United States v. Valdez-Novoa, 780 F.3d 906, 922 (9th Cir. 2015)
(citing Lopez-Alvarez, 970 F.2d at 591). “[T]he corpus deliciti rule does not require the
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government to introduce evidence that would be independently sufficient to convict the
defendant in the absence of the confession. Rather, it requires evidence sufficient to
corroborate the defendant’s confession.” Id. at 923 (citations omitted). “To satisfy the
corroboration requirement, the Government ‘must introduce independent evidence tending
to establish the trustworthiness of the admissions, unless the confession is, by virtue of
special circumstances, inherently reliable.’” Hernandez, 105 F.3d at 1332 (quoting Lopez-
Alvarez, 970 F.2d at 592). The Court of Appeals for the Ninth Circuit has explained:
[W]e review the sufficiency of evidence on the denial of a motion for
judgment of acquittal de novo. But where that motion is based on a challenge
that ‘the admission was not adequately corroborated by independent evidence
to constitute sufficient proof,’ we have never strayed from clear error review
of the underlying issue of the adequacy of corroboration. This is so because
factual determinations are given more deference than legal conclusions on
appeal.
United States v. Bejar-Guizar, 142 F.4th 1188, 1191 n.2 (9th Cir. 2025) (quoting
Hernandez, 105 F.3d at 1332).
The Government introduced the following evidence to corroborate Defendant’s field
admissions: Defendant was found in a remote area two miles north of the border and 16
miles from the nearest designated port of entry; Agent Rodriguez tracked the shoeprints
for 30 minutes from a location three-quarters of a mile north of the border to Defendant’s
hiding location; Defendant was found hiding in a bush and in a group of three men, two of
whom were lying face down on the ground; Defendant was wearing booties, which were
used by individuals attempting to conceal their movement; Defendant’s two co-travelers
also admitted they were not United States citizens and did not have legal documents to
enter the United States; Defendant was encountered in a location previously used to
illegally cross into the United States; Defendant did not have any documents authorizing
him to enter or remain in the United States; Defendant lacked any hiking, camping, or
hunting gear that might otherwise explain his presence in the remote location near the
border, and there were no vehicles parked on the nearest road; and records checks indicated
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Defendant had never applied or received authorization for legal entry into the United
States. Judge Dembin reasonably found that independent evidence adequately corroborated
Defendant’s field admission that he was a Mexican citizen without legal authorization to
be in the United States. See Garcia-Villegas, 575 F.3d at 951 (hiding in a bush can supply
corroboration). Judge Dembin did not commit clear error and reasonably found that the
Government proved alienage beyond a reasonable doubt.
Defendant also contends that “the government failed to prove, beyond a reasonable
doubt, an entry or attempted entry at a time and place other than a designated port of entry.”
(ECF No. 58 at 11.) Specifically, Defendant contends that “there was absolutely no
evidence whatsoever as to when, where, or how Mr. Gallardo-Monares crossed the border.”
Id. at 10.
The Government introduced evidence that, on June 26, 2019, Agent Rodriguez
received an alert as to movement at a location just three-quarters of a mile north of the
border. Agent Rodriguez went to that location, observed shoeprints consistent with the use
of booties, and tracked those shoeprints north—i.e., away from the border—to a location
two miles north of the border and 16 miles from the nearest port of entry where Defendant
and 	two 	others 	were 	hiding 	and 	wearing 	booties. 	That 	evidence, 	combined 	with
Defendant’s corroborated admissions as to his alienage and lack of proper documentation,
adequately established that Defendant attempted to enter the United States at a place other
than a designated port of entry “on or about June 26, 2019,” as alleged in the Complaint
and the Information. (ECF Nos. 1, 21.)
The date of entry or attempted entry is not an essential element of an illegal entry
offense. See 8 U.S.C. § 1325(a)(1) (applying to “[a]ny alien who . . . enters or attempts to
enter the United States at any time or place other than as designated by immigration
officers”); cf. United States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir. 2002)
(affirming an attempted reentry conviction of 8 U.S.C. § 1326 despite the charging
document containing no specific date). “Where, as here, the date is not a material element
of the offense, any variance between the date charged in the indictment and proof of the
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date at trial is harmless error if it does not affect the defendant’s substantial rights.” United
States v. Shea, 493 F.3d 1110, 1118 (9th Cir. 2007) (citation omitted). “Specifically, the
variance must not be of a character which could have misled the defendant at the trial and
must not present a danger of double jeopardy.” Id. (quotation omitted). “A variance
typically is immaterial if the government has proven that the criminal act occurred on a
date reasonably near the date cited in the indictment.” Id. (collecting cases holding that
date variances of two months or less are immaterial, while a variance of seven months is
material). The allegation that Defendant illegally entered the United States “on or about
June 26, 2019” adequately apprised Defendant of the charges against him, and there is no
indication that there is a danger of double jeopardy.
Defendant finally contends that “the government failed to prove beyond a reasonable
doubt that Mr. Gallardo-Monares had the conscious desire to enter the United States
illegally,” and “the government failed to prove, beyond a reasonable doubt, an overt act
that was a substantial step towards a completed offense.” (ECF No. 58 at 12.) As discussed
above, the Government produced evidence indicating that Defendant and his co-travelers
were found hiding in a bush and wearing booties, which are used to conceal shoeprints.
Agent Rodriguez testified that he found Defendant by following the shoeprints north from
the site of a seismic intrusion alert less than a mile north of the border to Defendant’s hiding
location two miles north of the border. The evidence of walking, hiding and wearing
booties, when combined with Defendant’s admission of alienage and lack of authorization,
is adequate to show that Defendant had the conscious desire to enter the United States
illegally, and took an overt act that was a substantial step towards the completed offense.
“[A]fter viewing the evidence in the light most favorable to the prosecution,”
Corona-Garcia, 210 F.3d at 978, this Court finds that the Government adequately proved
the elements of Section 1325(a)(1).
/ / /
/ / /
/ / /
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CONCLUSION
IT IS HEREBY ORDERED that the Notice of Appeal to District Court (ECF No.
39) filed by Defendant Jose Luis Gallardo-Monares is denied. The Judgment (ECF No. 37)
is affirmed. The Clerk of the Court shall close this case.
Dated: January 5, 2026
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